Overtime law - Germany - Employee rights

28 posts in this topic

Hi,

 

I joined a company XYZ GmbH in Berlin 6 months back. In that period, i was made to work for 12 - 16 hours a day and later last month i found later that i have worked 40 DAYS extra in a period of 4 months(Worked till 2 - 4 AM, Weekends etc). Every week i think it will get better, but it was just getting worse. In November i fell sick due to this and had to take 1 week off(Burn out). But unfortunately i had to complete all the 1 week's work after coming back, so i it was still worse. My probation was over last week, i could not quit because i did not get the time to find a job with this stress. And i was not able to quit without a job because of my family with a 16 months old kid at home. 

 

What can i do about this? I talked to my works council, theyre asking me to sue the company. But this company is an IT Giant. What are my chances ? in Germany ive been reading, i could not find any info about cases like this. Can someone help me on letting me know the options i have?

 

Best Regards,

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Before you sue them you should point out to them that there is a law regulating overtime:

Quote

Arbeitszeit im Sinne dieses Gesetzes ist die Zeit vom Beginn bis zum Ende der Arbeit ohne die Ruhepausen. Im Einzelfall sind vertragliche Änderungen möglich. Nach der Grundregelung in § 3 ArbZG darf die werktägliche Arbeitszeit der Arbeitnehmer acht Stunden nicht überschreiten. Sie kann auf bis zu zehn Stunden nur verlängert werden, wenn innerhalb von sechs Kalendermonaten oder innerhalb von 24 Wochen im Durchschnitt acht Stunden werktäglich nicht überschritten werden. Für Nachtarbeitnehmer muss der Ausgleich auf durchschnittlich acht Stunden gem. § 6 Abs. 1 Satz 1 ArbZG innerhalb eines Monats hergestellt werden.

Wenn Rohstoffe oder Lebensmittel zu verderben oder Arbeitsergebnisse zu misslingen drohen oder in Forschung und Lehre, bei unaufschiebbaren Vor- und Abschlussarbeiten sowie bei unaufschiebbaren Arbeiten zur Behandlung, Pflege und Betreuung von Personen oder zur Behandlung und Pflege von Tieren an einzelnen Tagen, kann von den obigen Regelungen Abstand genommen werden. Es gilt dann, dass die wöchentliche Arbeitszeit von 48 Stunden im Durchschnitt von sechs Kalendermonaten oder 24 Wochen nicht überschritten werden darf. (§ 14 ArbZG)

Das Arbeitszeitgesetz gibt einen Rahmen vor, der allerdings durch schriftliche Vereinbarungen zwischen den Tarifparteien (Tarifvertrag, Betriebsvereinbarung) oder Ausnahmegenehmigungen der zuständigen Behörde im Rahmen des Gesetzes erweitert werden kann.

 

Translated with www.DeepL.com/Translator (free version):

For the purposes of this Act, working time is the time from the beginning to the end of work, excluding breaks. In individual cases, contractual changes are possible. According to the basic regulation in § 3 ArbZG, the working time of employees on workdays may not exceed eight hours. It can only be extended to up to ten hours if within six calendar months or within 24 weeks an average of eight hours per working day is not exceeded. For night workers, the compensation for an average of eight hours pursuant to § 6, Subsection 1, Sentence 1 ArbZG must be established within one month.

If raw materials or foodstuffs are at risk of spoiling or work results are at risk of failing or in research and teaching, in the case of preliminary and final work that cannot be postponed and in the case of work that cannot be postponed for the treatment, care and supervision of persons or for the treatment and care of animals on individual days, the above provisions may be waived. It is then valid that the weekly working time of 48 hours on average may not be exceeded by six calendar months or 24 weeks. (§ 14 ArbZG)

The Working Hours Act provides a framework, which can, however, be extended by written agreements between the parties to the collective bargaining agreement (collective agreement, works agreement) or exemptions granted by the competent authority within the framework of the Act.

Source: https://de.wikipedia.org/wiki/Arbeitszeitgesetz

That should avoid the necessity to bother the courts.

 

 

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6 hours ago, Rica aciR said:

... i was made to work for 12 - 16 hours a day and later last month i found later that i have worked 40 DAYS extra in a period of 4 months(Worked till 2 - 4 AM, Weekends etc). Every week i think it will get better, but it was just getting worse. ....unfortunately i had to complete all the 1 week's work after coming back...i could not quit because i did not get the time to find a job with this stress....

 

OK - I'm sorry to hear about all the bad things that are happening to you.

 

But I'm also curious to know, how can somebody working for an "IT Giant" be "made to work" for longer than they want to?

Was there a person with a baseball bat standing behind you? Or were you chained to your desk? I've been working in IT since 1978 - and times get hectic for sure - but I have never "been made" to stay longer than I wanted to. I just get up and leave after about 8 or 9  hours - and then I come back after I'm well rested.

 

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31 minutes ago, karin_brenig said:

But I'm also curious to know, how can somebody working for an "IT Giant" be "made to work" for longer than they want to?

 

Well, in Probezeit ...

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An 'IT giant' should have enough staff to cover if you are not available.

Your extra working, is that classed as 'Mehrarbeit' / overtime? In which case you can choose time off in lieu (or overtime payments). 

Take time off. Fill in the form and take a few long weekends (the workers council -BR- should support here)

 

It's not your fault! Try to keep that in mind as you walk out every day. They can't fire you as you're passed Probezeit and any court would hang them out to dry. 

Remind your immediate boss that more than 10hrs a day is illegal unless extenuating circumstances. Get the over 10hrs form filled in (again, the BR will help).

 

After 10hrs at work, you are not insured to drive home. Leave the car at the office and bill them for a taxi home (and back next day) Again, BR can explain.

 

Good luck with the new job search!

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1 minute ago, HH_Sailor said:

After 10hrs at work, you are not insured to drive home. Leave the car at the office and bill them for a taxi home (and back next day)

That´s interesting. Do you have a link for that?

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What exactly do you mean when you say your work council would like you to sue the company? Are they suggesting you hire a lawyer and basically deal with it yourself or?

 

ETA: It's my understanding that it's ultimately the employer's responsibility to ensure you are not overworking. I had one employer that got into hot water from mobbing people into overtime - no they didn't use bats, they didn't have to - and to cover their asses in the aftermath they started going around telling people to go home on time, required documentation for over hours, etc. Point here is that overtime laws are taken seriously by the courts. It is always good to be able to document how/why you worked so much more than is reasonable or legally allowed (eg given unreasonable deadlines, too many tasks, mobbing, whatever) but the onus is really on the employer to actively prevent you from overworking. 

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54 minutes ago, jeba said:

That´s interesting. Do you have a link for that?

 

I was reporting the discussions we had at work that I had taken to be true.

A little internet research, it seems that the devil is in the detail.

 

I'll take back the "no insurance after 10hrs at work" statement !

But basically, you don't want to be working longer than 10 hrs a day

and also, your immediate boss definately doesn't want to be proven to have told you that.

 

Insurance or no insurance, it happened in my company that someone had a serious car accident on their

way home after over 10hrs at work. The consequences were court cases for the responsible team leader,

a reminder to all team leaders (and then on to us to fill in any paperwork) but far more serious : 

a family losing a loved one due to being tired from overwork.

 

BR Blog : insurance and the 10hr rule

Quote

Therefore: Non-compliance with the law does not lead to the loss of protection. Even after 15 hours of work or even longer, the GUV intervenes in principle in favour of the employee in the event of an accident, provided that the accident occurs while performing an insured activity or on the way to and from the place of work (§ 8 SGB VII).

 

But what if the traffic accident was verifiably caused by the employee being completely overtired?

 

Then the following applies: If it is fatigue due to operational circumstances, the employee is protected by the GUV insurance. Anyone who works 15 hours and then drives home is considered to be fatigued due to operational circumstances. This has already been decided by the highest social courts on several occasions (such as the Bavarian State Social Court on 14.12.2011 - L 2 U 566/10).

 

However, there is also the case of so-called non-occupational fatigue. Employees can risk their insurance cover if they act "on their own account". Example: One works (illegally!) for 15 hours, but the employer offers overnight accommodation at or near the workplace. However, this offer is turned down because you want to go home. On the way home, one suffers an accident due to exhaustion and fatigue. The insurance company could speak of a "self-created" danger, for which there would then be no insurance cover. However, the circumstances would have to be proven by the GUV.

 

GUV =  Gesetzliche Unfallversicherung

(translated by deepl.com)

 

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Germany is serious about overtime law, both not working more than 10 hrs per day as well as getting at least one day off per week.

 

I was doing a project at a company where they were trying to push employees to work on their days off. Some people worked 3 weeks in a row without a day off. When they complained they were told that yeah, it sucks but we need to. 

 

Then someone complained to the authorities and suddenly they are going by the book in detail making sure that everyone gets enough days off and nobody stays over 10 hrs, even threatening write up if they do.

 

In your shoes I would start going home after 10 hrs and if you don't get your work done then it's simply not done. 

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Since OP is done with probezeit, and has so much overtime booked with no compensation thus far, no.  8 hours and no more.  and get the BR to help him claim the 40 DAYS of overtime back.  

 

fuck that noise.

 

(sorry, been there and done that for so long without recourse in the US where there is zero protection...yes it's a passionate topic for me ;) )

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58 minutes ago, lisa13 said:

Since OP is done with probezeit, and has so much overtime booked with no compensation thus far, no.  8 hours and no more.  and get the BR to help him claim the 40 DAYS of overtime back.  

 

I was thinking they had an overtime account but if completely unpaid, I would definitely not be doing it.  I actually had that happen many years ago, made a contract not specifying how overtime should be paid and turned out that my boss figured it wouldn't be.

 

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Just now, LeonG said:

 

I was thinking they had an overtime account but if completely unpaid, I would definitely not be doing it.  I actually had that happen many years ago, made a contract not specifying how overtime should be paid and turned out that my boss figured it wouldn't be.

 

 

yeah - that's kinda the point.  If it were a couple of weeks' worth of overtime or something...and there was a clear plan in place for compensation (either pay or time off in lieu) no problem.  I just don't get the impression this employer has any intention of giving them the time back (ideally off work, which sounds very much needed in this case) if they can let it slide. 

 

40 days in 6 months with nothing in return?  SMH.

 

 

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@HEM regarding your clarification, I do think this is a gray area.  The same employer who had trouble for mobbing people into lots of overtime also tried to get me to SIGN a document saying I was willing to work over hours (including sundays) without the usual insurance cover.

 

I said "nope".  The only stuff I would sign said "we asked you to work overtime on these days" and nothing more.

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40 days = 320 hrs.  Most companies have a roof on the overtime account and you start to get paid after you reach it.  I've had jobs where the ot account topped out at 100, 150 and 250 hours.  Currently I'm working for a guy who is basically self employed so we are not too worried about the framework.  We never set a roof for my ot account and when it reached 400 my boss started to worry.  He asked me what I'm planning to do with it and I said I'm saving up for a year off.  So then he decided the roof would be 400 although he's still paying out even when I am using them.  I'm down to like 380 now.

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Yes but unless OP tells us he's been compensated in any way, we have to assume he has not been.  He allegedly took a week off for burnout then had to make up the week in overtime when he returned.  Doesn't sound kosher at all.

 

So @Rica aciR what's the deal?  Have you worked all this overtime and as far as you know have no way of getting paid for it or getting the time back as days off?  What did the BR say in this direction?

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1 minute ago, lisa13 said:

Yes but unless OP tells us he's been compensated in any way, we have to assume he has not been.  He allegedly took a week off for burnout then had to make up the week in overtime when he returned.  Doesn't sound kosher at all.

 

So @Rica aciR what's the deal?  Have you worked all this overtime and as far as you know have no way of getting paid for it or getting the time back as days off?  What did the BR say in this direction?

 

Well, I've seen people complain here about unpaid overtime though when they actually had an overtime account.  So if there is an overtime account, you do get paid eventually.  If there isn't, no time off against it and no payment, then don't do it.

 

And even if there is payment, it's still not much of a life if you work that much.  There's still burnout.  So OP, you need to stand up for yourself.  Tell the boss to give you priorities so you can work on what's most important but tell them you can't do it all and wont be trying to accomplish the impossible anymore.

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3 hours ago, HEM said:

@lisa13 I don't believe I have posted on this thread!

 

Oh jeez you're right - I'm sorry I got the @ wrong

 

I was referring to HH_Sailor's comments.  

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Thank you everyone. 

 

Is there any similar issues documented anywhere in Germany, i see in the US many companies getting sued for these kind of cases but not in Germany. 

 

 

On 2/7/2020, 8:18:39, lisa13 said:

oh and OP?  Please change your nationality.  It's blatantly obvious you are not German.

 

@lisa13 you guessed that right :/ unfortunately the colleagues whom i'm working with are Germans who are contractors. They are happy to work on weekends and late nights since they can charge them. Unfortunately we could not.

 

 

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